Conflicts over a person’s estate upon his or her death are inevitable when there is no clear permission, instruction, or guidance on how the inheritable properties must be distributed.
If you want to prevent creating feuds or reinforcing rivalries among your loved ones upon your passing, put plenty of careful thought into your estate planning.
Understanding the last will and testament
To understand how estate planning works, it is important to appreciate what the last will and testament represents and how it is used.
- Let us begin with a clear definition of common terms that you are likely to encounter in estate planning:
Last will and testament – Simply referred to as a “will,” this refers to the document that legally facilitates the distribution of persons’ estate upon their death. According to Article 804 of the Civil Code, “Every will must be in writing, and executed in a language or dialect known to the testator.” - Estate – The total sum of a person’s net worth, including both tangible properties like land, cash, and other physical possessions and intangible assets such as intellectual property and goodwill.
- Inheritance – All the property, rights, and obligations of a person, which are not extinguished by [the person’s] death, as defined in Article 776 of the Civil Code.
- Testator – This term is used to refer to the person who made a will.
- Decedent – Another term used to refer to a dead/deceased person.
- Legatee/Devisee – These terms refer to beneficiaries identified in a person’s will. Legatees are individuals who are given personal property, whereas devisees are those who are given real property.
- Executor – This is the party responsible for implementing the provisions stated in a will.
- Legitime – Also known as a forced share or legal right share, this term refers to the portion of the estate from which the decedent is not allowed to disinherit his children, or his parents without sufficient legal cause.
A person’s will only takes effect upon the death of the testator. Any distribution or transfer of property or estate while the testator is still alive is considered a donation. Such transfers are subject to legal provisions that apply specifically to donations.
General and common requirements of the will
For a will to be valid and effective, it must be valid in both substance and form.
In substance, the Testator must have legal capacity to execute a will. This means that he or she must be of legal age and sound mind. The properties disposed on the will must be ones that the Testator has right to dispose of, such that these must only be properties that are owned by him or her and should not affect the legitime of the heirs.
In form, a holographic will must be in handwriting entirely, whereas the notarial will has specific forms under Section 805 of the Civil Code that must be complied with.
Two types of wills
An important distinction must be made between two kinds of wills— holographic and notarial. Both types of wills serve the primary purpose of disposing and distributing a person’s property and estate upon his or her death. The main difference is the form.
A holographic will is one which is written, dated, and signed entirely by the hand of the testator. As such, these are more straightforward to execute compared to notarial wills. Subject to no other form, holographic wills may be made in or out of the Philippines, and do not require any witnesses in order to be executed.
Every other will that is not entirely written, dated, and signed by the testator is considered a notarial will. The implementation of the provisions in these documents is governed by the provisions under Articles 805 and 806 of the Civil Code.
In summary, a notarial will requires:
- Subscription of the person making the will. Another person may also sign the testator’s name, provided that it is done in the testator’s presence and by his explicit direction.
- At least three credible instrumental witnesses with no stake or interest in the testator’s estate. Witnesses must attest to the number of pages used in the entire will. They must also confirm that the testator (or his or her lawful representative) signed each of these pages.
- Acknowledgment by the testator and the witnesses before a notary public
- Signature of both Testator and witnesses in each and every page, except the last page, at the left margin of the pages. All pages of the will shall be numbered correlatively in letters placed on the upper part of each page.
Probate of the will
Holographic and notarial wills only become effective upon the death of the Testator. However, both kinds of wills are not self-executory; the wills need to be approved by the court through a process called probate of the will.
Probate of the will is a procedure in court whereby the validity of the will both in substance and in form are verified and proven. The Testator himself, while alive, may file for such probate of the will. Otherwise, any person named in the will as executor or legatee may apply for the probate of the will upon the death of the testator.
If you are looking for reliable legal representatives to assist you in your estate planning, reach out to Duran & Duran-Schulze Law. Call us today at (+632) 478 5826 or send an email to info@duranschulze.com for more information.